People v. Bollaert
248 Cal. App. 4th 699
| Cal. Ct. App. | 2016Background
- Defendant Kevin Bollaert operated UGotPosted.com (users posted intimate photos plus names/locations/Facebook links) and ChangeMyReputation.com (promised paid removals); jury convicted him of multiple counts of extortion and unlawful use of personal identifying information (Pen. Code § 530.5).
- UGotPosted required submitters to supply victims’ full name, age, city/state/country, and Facebook link; Bollaert moderated, edited, watermarked, reviewed every post, kept a spreadsheet of posts, and controlled site content and removal.
- ChangeMyReputation payments (total ≈ $30,147.73) flowed to Bollaert’s PayPal; some victims paid to have images removed after UGotPosted failed to respond to removal requests.
- Prosecution proceeded on three § 530.5 unlawful-purpose theories: invasion of privacy by public disclosure of private facts, intrusion into private affairs, and harassment via electronic communication (§ 653m). Jury found unlawful disclosure/intrusion for some victims.
- Defense argued § 530.5(f) immunity (as an interactive computer service under the CDA § 230), that he was not an "information content provider," and that there was no willful obtaining of personal information or extortion because content was already public and removal-for-fee was a legitimate business practice.
- Trial court instructed jury on CDA-related concepts and civil tort-based invasion-of-privacy instructions (CACI 1800/1801) at defense request; court denied CDA immunity and affirmed convictions; sentence affirmed on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for § 530.5 (willful obtainment and unlawful purpose) | Evidence shows Bollaert designed site to elicit private info/photos, viewed victims’ Facebook pages, retained info, and used it to invade privacy and obtain payments. | Third parties posted info; Bollaert merely hosted site and did not willfully obtain or use info for unlawful purposes. | Evidence sufficient: willful obtainment and unlawful purpose (invasion of privacy by intrusion/public disclosure) proven. |
| CDA § 230 immunity / information-content-provider status | No immunity because Bollaert materially contributed to illegality by requiring identifying info as condition of posting and designing site to solicit unlawful content. | UGotPosted was an interactive computer service; any edits/moderation are neutral—he did not create content and thus is immune. | Held he was an information content provider: site design materially contributed to unlawfulness, so § 230 immunity did not shield him (and § 530.5(f) inapplicable if intent to defraud shown). |
| Intent to defraud (to defeat § 530.5(f) immunity) | Circumstantial evidence (separate site/name/email, concealment, prompt removal only after payment) supports intent to deceive victims into paying operator. | Victims knew the link; payments were to remove content, not the product of deception. | Jury could reasonably infer intent to defraud; sufficient circumstantial evidence that payments were procured by deception. |
| Sufficiency of extortion evidence | Victims paid because fear of continued exposure/disgrace; linking UGotPosted to ChangeMyReputation and conditioning removal on payment implied threat — constitutes extortion. | No explicit threat; removal-for-fee was a legitimate service (analogy to Yelp case); content already public so not a “secret.” | Held evidence sufficient: implied threat and secret (still secret to relevant others) supported extortion convictions; Levitt inapposite. |
Key Cases Cited
- Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir.) (CDA § 230 immunizes passive online providers for third-party content)
- Carafano v. Metrosplash.com Inc., 339 F.3d 1119 (9th Cir.) (website operator not an information content provider where user alone created defamatory profile content)
- Fair Hous. Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. en banc) (website that elicits unlawful content via required questions materially contributes to illegality and loses § 230 immunity)
- Batzel v. Smith, 333 F.3d 1018 (9th Cir.) (selection/publishing by intermediary does not always make it a content developer)
- Jones v. Dirty World Entm’t Recordings LLC, 755 F.3d 398 (6th Cir.) (applies material-contribution test for § 230; neutral tools typically preserve immunity)
- Levitt v. Yelp! Inc., 765 F.3d 1123 (9th Cir.) (no extortion liability where defendant sought payment for legitimate services and plaintiffs had no preexisting right to demanded outcome)
- People v. Peniston, 242 Cal.App.2d 719 (Cal. Ct. App.) (photographs may still be a “secret” for extortion even if circulated; relevance is whether disclosure to particular people would cause fear)
- In re Rolando S., 197 Cal.App.4th 936 (Cal. Ct. App.) (§ 530.5 unlawful purpose can include intentional civil torts; willful obtainment inferred from possession/use)
- Sanders v. American Broadcasting Cos., 20 Cal.4th 907 (Cal.) (privacy expectations can be reasonable even if not absolute)
- Shulman v. Group W Prods., Inc., 18 Cal.4th 200 (Cal.) (elements of invasion-of-privacy torts: intrusion and public disclosure of private facts)